APPEAL/COSTS: Re N; A v G and N [2009] EWHC 2096 (Fam)

06 AUG 2009

(Family Division; Munby J; 5-6 August 2009)

In the course of acrimonious and confrontational residence and contact proceedings, the judge directed that if any party wished to seek permission to appeal against his two most recent judgments, concerning disclosure and s 8 matters, they should serve on the other parties, and copy to the judge, a brief skeleton or written submissions identifying the grounds on which permission was sought, with brief oral amplification of these arguments at the hearing. The father, by his McKenzie friend, gave notice of his intention to apply for leave to appeal, but declined to give grounds or reasons as to why leave was being sought, giving, as his reason, that this was a wasteful exercise, not only because there was no expectation that leave would be granted, but also because 'experience shows that if you set out your detailed reasons for asking Leave - effectively disclosing your intended grounds of appeal - then judges use that as an opportunity in Form N460 to embellish and add to their Judgments and to influence the Court of Appeal against the appellant. It is for the Court of Appeal to determine appeals and applications thereto for Leave to Appeal and . . . the introduction of Form N460 was wrong because it allows the Judge under appeal to be effectively heard in the Court of Appeal via his response to a leave application in the lower court. In practice some judges use this opportunity to try and scupper the appeal if they have knowledge of the appellant's intended grounds to be put before the Court of Appeal. [The father] will therefore reserve his grounds of appeal and reasons for asking Leave to Appeal to the Court of Appeal.' There were also costs issues: the father sought his costs on the disclosure issue (90% to the guardian and 10% to the mother), while mother sought her costs of the s 8 issues from the father.

Dealing first with the costs issues: the father's approach to the s 8 litigation had been unreasonable, but the fact that a parent had litigated in an unreasonable fashion did not of itself necessitate the making of a costs order. The father's litigation conduct had come very close indeed to justifying the costs order sought by the mother, but on balance such an order would not be fair, just or reasonable, not least because of the impact such an order would have upon the child. Therefore, notwithstanding the way in which the father had chosen to conduct the litigation, there should be 'no order' as to the s 8 costs. However, if there was any further continuation of the litigation by the father making any further unsuccessful applications, a different order might very well have to be made. Equally, it was not appropriate to make any order for costs in relation to the disclosure. The father's approach to leave to appeal was yet another example of the father, aided and abetted by his McKenzie friend, choosing to defy decisions of or directions given by the court, and expressing his disdain, indeed his contempt, for the judicial system and for the judges. While criticism of judges was not a contempt of court, those who chose to use language of the type which, too frequently, the father and his MacKenzie friend had chosen to use throughout this litigation - not on the spur of the moment or in the heat of forensic battle, but in carefully drafted written documents - misunderstood the proper role of the advocate and abused the privileges conferred upon them whether as litigant or as advocate. It was not possible for a judge to assess whether an appeal would have a real prospect of success, as required by CPR 52.3(6) if the would-be appellant refused to tell the judge what his proposed grounds of appeal were or to tell him why he said the judge had erred in some way that entitled to the Court of Appeal to interfere. The father's refusal to identify either the grounds of his proposed appeal or the reasons as to why leave was being sought justified, indeed almost necessitated the refusal of his application for leave to appeal.

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